Atlanta Injury Lawyer Blog

Georgia Drivers: Thinking of Renting a U-Haul?

November 6, 2009 | Robin Frazer Clark

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Georgians who may be planning to rent a U-Haul truck should be aware of potential problems in the U-Haul truck fleet with maintenance of their trucks that may present a safety hazard for the driver of the truck or anyone around the truck. This safety issue came to light in a trial in Texas in 2008 in which a 74-year-old man was seriously injured after a parked U-Haul truck he rented rolled over him.

In 2006, Talmidge Waldrip, a Texas resident, parked a rented U-Haul truck in front of a warehouse, set the parking brake and turned off the ignition.When he stepped out of the cab, he fell. The truck rolled, running over Waldrip, crushing his pelvis and lumbar spine, rupturing his bladder and causing a number of other serious injuries. As a result, he has had a numerous surgeries and is now partially paralyzed.

Waldrip sued the truck company, alleging negligence and gross negligence. The key to the case was evidence that the company failed to maintain the brake and transmission systems of its truck fleet properly, including the 18-year-old, 234,000-mile driven truck that caused Waldrip’s injuries. The six jurors returned an $84.25 million verdict in favor of the plaintiff, Talmadge Waldrip, including a $63 million in punitive damages against U-Haul International for failing to maintain its rental trucks in safe working order. U-Haul has appealed the verdict.

Calling All Georgians: Be An Organ Donor!

October 16, 2009 | Robin Frazer Clark

Organ donation is so important. Many Georgians are waiting right now for a life-saving organ. I encourage folks to sign donor permission forms and tell their relatives that if they are killed or die unexpectedly, they want any usable organs donated. You must be clear about your wishes regarding all possible organs, including skin and tendons or ligaments, suitable for donation. I love the bumper sticker that says: “Be An Organ Donor: Heaven Knows We Need Them Down Here.” So true! There is an alarming shortage of donated organs in Georgia and in the United States. Over half of the 100,000 Americans on the national transplant waiting list will die before they get a transplant. Most of these deaths are needless. Americans bury or cremate 20,000 transplantable organs every year.

Below is a story about a little boy who desperately needs a new kidney. I share this story with you with the hope that maybe someone out there will read this and respond or, at the very least, become an organ donor by signing his or her driver’s license.

Finding A Kidney For Giovanni

Joshua’s Law Deserves Complete Funding

October 13, 2009 | Robin Frazer Clark

I am proud to represent Alan Brown in his quest for justice against the Georgia DOT for its failure to build and maintain a safe road. The Atlanta Journal and Constitution ran an article yesterday on the front page of the Metro Section about Joshua’s Law, which Alan Brown, Josh Brown’s father, created after the death of his son, Josh, in a single vehicle collision that resulted in Josh’s death. Although the State of Georgia has collected $33 Million in fees thanks to Joshua’s Law, the State of Georgia has returned only $9 Million of that money to fund Joshua’s Law, which requires driver’s education classes in Georgia high schools. How can this be, you ask? Isn’t the State of Georgia just making money on the back of Georgia taxpayers when those funds should be going to driver’s education instead of the State’s general operating account? Makes sense…but that’s not the way it works in Georgia, oddly enough. Just like the Georgia Indigent Defense Program, which has its own funding mechanism, it is up to the State to give that money to the program it was intended to fund. In the case of Joshua’s Law, trying to get back all of the $33 Million raised by Joshua’s Law into the funding of Joshua’s Law is a classic David versus Goliath. The good news is that in the Valley of Elah, David won, with only five smooth stones. Watch out, Goliath!

Thomas E. Magill: A True Friend

October 12, 2009 | Robin Frazer Clark

A week ago tonight one of my dear friends passed from this earth. Thomas E. Magill was my close friend and I am saddened at his death. Tom was a defense attorney, and so we were often adversaries with Tom defending many of the cases I filed on behalf of my clients. We even had tried a wrongful death case against each other. It is through that framework of being opponents that we became the closest of friends. The fact that we became such good friends even though we were typically on the opposite sides of cases is a testament to the professionalism in the law, that two opposing counsel do not have to take anything said or done in the heat of the battle personally, but can do their jobs on behalf of their respective clients, seek justice on behalf of their clients and still come out of that battle with the deepest respect for one another. That is one thing that makes the legal profession so noble and unlike any other profession on Earth. It is also a testament to my friend, Tom Magill. The world was a better place with Tom in it. I will miss him dearly.

MAGILL, Thomas E. THOMAS E. MAGILL Tom Magill died with grace and serenity on Monday, October 5, 2009. He was a loving and beloved husband and father, a respected attorney, a faithful servant of God, and a loyal and trustworthy friend to many. He will be remembered with joy and will be sorely missed by the many whose lives he touched so deeply. Tom was born in Washington, D.C., on July 13, 1953, and moved to Birmingham, Michigan in early childhood. He graduated from University of Detroit High, Kalamazoo College, and Tulane University School of Law, and he maintained lifelong friendships with classmates from each school. He moved to Atlanta in 1978. He then joined the firm of Carter, Ansley, Smith and McLendon and in 1996 formed his current firm, Magill and Atkinson. He was also an experienced mediator with Henning and Associates. Tom was an avid golfer and cherished his time on the course at Druid Hills Golf Club. Tom was an active and faithful servant of the Lord at the Cathedral of Christ the King, and he loved his many dear friends there. Tom is survived by his beloved wife of nearly 26 years, Dr. Carol Brock, and the three children he delighted in, Jenny, Connor, and Chris. He is also survived by his sister Ann (Richard) Nahigian of Fresno, California; brothers Douglas (Karen) Magill of Solon, Ohio, Robert F. (Carol) Magill, Jr., of Dexter, Michigan; nieces Emily (Dane) Wildey, Ann-Marie (Danny) Kraft, Katie Magill, Krista Magill, Kirstie Brock, and Jodie Cunnington; nephews, Douglas A. Magill, Jr., Brian Magill, Marc Magill, Michael Magill, Sean Magill, and Brock Cline; great-nieces Claire Wildey and Martha Lee Brock Shepherd; great-nephews, Stone Wildey, Colson Kraft and Oscar Duke Shepherd; and many cousins. Tom was preceded in death by his parents, Robert F. and Aileen (O’Connor) Magill. Tom and his family are forever grateful for the love and support shown by their family, friends and fellow survivors over the past three years, since the beginning of his journey as a multiple cancer survivor. Family will be receiving friends Thursday, October 8 from 6 to 9PM, with the rosary at 8PM, at H.M. Patterson and Son, Spring Hill Chapel. The funeral service will be held Friday, October 9 at 10AM at Cathedral of Christ the King. A private burial will be held at Honey Creek Woodlands at the Monastery of the Holy Spirit. In lieu of flowers, donations may be made to Winship Cancer Institute at Emory University, American Cancer Society , Kidney Cancer Association, Support for People with Oral and Head and Neck Cancer, the Cathedral of Christ the King, or to the charity of your choice.

Should We Have “Designated Texters?”

October 4, 2009 | Robin Frazer Clark

Pulitzer Prize winning political cartoonist Mike Luckavich had the perfect cartoon about texting the other day. It is a group of friends at a bar and they decide to be responsible on the drive home, so one of them says “OK, so who is our designated texter?” Perfect! As you know from reading my blog, studies have absolutlely proven that a sober driver who is texting while driving is really more impaired than an intoxicated driver! Now that’s some sobering news.

I have been writing about this subject for awhile, hoping that come January 2010 the Georgia General Assembly will make it illegal in Georgia to text while driving. Interestingly, now Congress is thinking about making it a Federal offense! Wow! Talking about upping the ante! The Obama administration planned to offer recommendations this past Thursday to address the growing safety risk of distracted drivers, especially the use of mobile devices to send messages from behind the wheel. “We can really eliminate texting while driving. That should be our goal,” said Transportation Secretary Ray LaHood, declining to provide specifics of the recommendation.

Well, the statistics don’t lie: the Transportation Department reported that nearly 6,000 people were killed and a half-million were injured last year in vehicle crashes connected to driver distraction, often by mobile devices and cell phones. This is insane! How many Georgians have to be injured or killed by careless drivers who are texting behind the wheel before it is made illegal? Perhaps the Georgia Legislature could create a new offense, “DWT: Driving While Texting”?

Will Georgia Legislature Outlaw Texting While Driving (TWD)?

September 25, 2009 | Robin Frazer Clark

I read yesterday that a group of United States Senators have filed a bill that would make it illegal on a Federal level to text while driving. These Senators are Senator Charles Schumer of New York, Senator Robert Menendez of New Jersey, Senator Mary Landrieu of Louisiana, and Senator Kay Hagan of North Carolina. The measure, S. 1536, called the Avoiding Life-Endangering and Reckless Texting by Drivers Act (or “ALERT Drivers” Act), would apply to drivers of any car, truck or bus, as well as most other mass transit systems, including light rail. The legislation would not apply to individuals using mobile devices in a parked vehicle, nor would it apply to passengers. Lawmakers said the legislation is necessary, citing a study by Virginia Tech researchers showing that drivers are 23 times more likely to get into an accident when texting on their phones. Other studies show that the effects of driver texting are similar to driving while intoxicated, the lawmakers said.

Good for them…although I really don’t think this is an issue that should be dealth with on a Federal level. It seems to me it is inherently a State issue and I register my hope again here that the Georgia General Assembly takes action in January 2010 to make texting while driving (TWD OR DWT) illegal. Other states have already taken this measure, including New York and California. http://lawyersusaonline.com/?article=432572 Why can’t Georgia be next? Why shouldn’t Georgia be next?

Georgia Supreme Court to Hear Caps on Medical Malpractice Damages Case

September 14, 2009 | Robin Frazer Clark

Tomorrow, the Supreme Court of Georgia, the highest appellate court in the State of Georgia, will hear oral arguments in what may prove to be one of the most significant cases to come before the Court in a hundred years. It is the case of Atlanta Oculoplastic Surgery v. Nestlehutt, which challenges the provisions of Senate Bill 3, passed in 2005 by the Georgia General Assembly, that caps noneconomic damages that a jury may award to a victim of medical malpractice at $350,000.00. This means that if your spouse, who doesn’t work outside the home, or your child who has no earnings history, is killed by medical malpractice, the absolute most you could recover for your loved one’s death is a mere $350,000.00. This is absurd on so many levels. In the Nestlehutt case, a Fulton County, Georgia jury awarded Mrs. Nestlehutt well over $350,000.00 for permament injuries she received to her body due to medical malpractice by her physicians. After a trial, the Fulton County jury found Mrs. Nestlehutt’s case to be meritorious and awarded her substantially more than the $350,000.00 cap. When judgment was about to be entered, however, the Fulton County trial court judge ruled that the cap of $350,000.00 found in SB3 was unconstitutional, for many reasons.

The Defendant appealed directly to the Supreme Court of Georgia, which will hear arguments tomorrow at 10:00 a.m. I have personally filed an Amicus Brief (a Friend of the Court Brief) on behalf of the many clients I represent in medical malpractice cases who have had the value of their claims unnecessarily reduced by the arbitrary caps on damages. Numerous briefs have been filed. There is no question in my mind that the caps on damages law violates a Georgia citizen’s absolute right to a trial by jury. Limiting what a jury says is fair and just, given all of the harms caused by a defendant’s malpractice, is tantamount to taking away a person’s right to a jury trial to decide those issues in the first place. A wronged Georgia citizen can not realize the full benefit of his or her Seventh Amendment right to a jury trial if it is limited in any way.

Also, the caps on damages limits access to justice for many. Many people who have valid medical malpractice claims but in which the only damages are noneconomic, so they are limited by the $350,000.00 cap, cannot bring any lawsuit on behalf of a loved one because they have no realistic hope of recovering enough to justify an attorney’s handling of the case. Although Georgia law allows a person to bring a case pro se, or without a lawyer, realistically, that would never work in the medical malpractice arena. There are too many special requirements for the filing and proving of a medical malpractice case. In reality, a pro se plaintiff would stand no chance. That is the beauty of a contingency fee. It allows a victim to pursue justice and when the stakes are high enough, the high cost of a medical malpractice case (many take anywhere from $75,000.00-$200,000.00 to bring and proscecute) can be justified. Otherwise, it can’t.

Tractor Trailer Companies Skirt the Law

August 31, 2009 | Robin Frazer Clark

A new study by the American Association for Justice shows that 28,000 motor carrier companies, operating more the 200,000 trucks on American roadways, have violated federal safety regulations. Literally hundreds of Georgia trucking companies were listed as having safety violations. That’s mind-boggling, isn’t it? And scary.

There is no question that the motoring Georgia public takes the brunt of these intentional violations. If you have the misfortune of being involved in a collision with a tractor-trailer or other large commercial truck, you are likely to sustain some pretty serious bodily injuries. Another thing that disturbs me about Georgia law is that currently those tractor-trailers that travel only within the state limits of Georgia are required to carry only $100,000.00 in liability insurance, compared to interstate tractor-trailers, which are required to carry $750,000.00. Georgia is way behind on this issue. The reality is that a tractor-trailer that is intrastate (traveling only inside Georgia) is just as likely to kill or maim you in a collision as is an interstate (traveling from state to state) tractor-trailer. I hope I will be able to make some progress with the Georgia General Assembly next session on this issue.

Meanwhile, do your best to stay away from tractor-trailers while driving. Keep a lane in between your car and the truck. I once an an accident reconstructionist tell me never to drive side by side with a tractor-trailer and just let them go on down the road and stay clear of them. Wise advise from someone who, like me, had seen the end results of too many tractor-trailer accidents.

New PSA on the Hazards of Texting While Driving Powerful

August 25, 2009 | Robin Frazer Clark

I saw this new PSA on the hazards of texting while driving on The Today Show this morning. As a mother of a teenager about to get his driver’s permit, I intend to make him watch it. You can watch it, too, but, WARNING: it is extremely graphic. It graphically shows the wreck caused by a teenage driver who was texting while driving three of her friends. A terrible collision occurs and although she survives, she has killed her three best friends. Unfortunately, I have seen this scenario all too often in my plaintiff’s personal injury practice in Atlanta.

For my regular readers, you’ll know it has been somewhat of a crusade for me to advocate the passing of laws against driving while texting. The newest studies are startling. Recent studies show that texting while driving may be as dangerous and lethal as drunken driving. Up to a quarter of the estimated 40,000 vehicle fatalities in the U.S. annually may be traced back to distracted drivers texting. A recent Virginia Tech study found that texting drivers are 23 times more likely to be involved in a collision than nontexters. And although the AAA reports 95 percent of drivers polled acknowledge texting while driving is dangerous, 21 percent of them have done it recently anyway.

Will the Georgia Legislature take the next available opportunity in January 2010 to outlaw texting while driving? Such a law could save thousands of lives. I don’t know what the Georgia General Assembly will do, but for now, concerned parents should have their teen drivers watch this video and think twice about texting while driving.

SUV Driver Kills Child Exiting MARTA Bus

August 13, 2009 | Robin Frazer Clark

My heart is heavy and sad this morning after hearing the news that the little six year old girl who was struck by an SUV driver as she was exiting a MARTA bus died yesterday due to internal injuries suffered in this horrible collision. The driver of the SUV has now turned himself in this morning to police and faces vehicular homicide charges. The SUV driver violated the Georgia Rules of the Road by crossing a double yellow line when he struck the little girl. A Clarkston police officer who was parked on the corner of Ponce de Leon Avenue saw the wreck. He had just written tickets to six other drivers for passing on the double yellow line and was just about to go after this particular SUV driver when the driver hit the little girl.

This is a tragedy beyond all proportions. The family had been in Atlanta only for a few days having immigrated here from Nepal. She died on what would have been her first day of school at Indian Creek Elementary School. The Clarkston police chief said the driver who hit the little girl had a lengthy history of disobeying the rules of the road and that he “has no regard for the law.”

So what is wrong with Atlanta drivers? Many obviously ignore the rules of the road, as evidenced not only by this horrible collision but also by the fact that the police officer there had already written six tickets for the same violation just moments earlier. Atlanta is particularly dangerous for pedestrians. My law office is at the corner of Peachtree Street and 15th Street in Midtown, and I personally see numerous drivers run the red light at the intersection every day, and yet nothing is ever done about it. One day someone is going to get killed at that intersection, and I wonder then whether anything will be done about it. Should there be stiffer penalities? Should drivers be required to take driving tests periodically? For now, Atlanta drivers should just take a collective deep breath, calm down and drive more slowly. Maybe if everyone is not in such a big hurry, they will be able to think about what the Georgia Rules of the Road require of them and maybe they’ll actually follow them. Until then, Georgia families are going to face more tragedies like this one.